Thoughts on Supremacy

Those who oppose the drive to reassert local control over those powers not delegated to the feds in the Constitution will often brush off state-level attempts by yelling “supremacy clause, supremacy clause, supremacy clause!”

They take the position that if the federal government does something – anything they don’t oppose that is – that we have to take it and obey it. No matter what. During the Bush years, people who took this position were generally from the right. These days, they’re almost exclusively from the political left.

I recently got an email from someone who brought this concept up – in what I thought was an obvious way. Here’s our exchange:

The initial email:

What is the clause in the Constitution that allows what you describe as “nullification”? The Supremacy Clause (http://en.wikipedia.org/wiki/Supremacy_Clause) clearly establishes the superiority of federal law over state law.

My Reply:

It does? Mind explaining how? Because it’s likely you have it backwards…

Another email:

The text of the clause states:

“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”

All state judges are, therefore, legally bound to federal law
regardless of state law or state constitutions.

My response:

Exactly!

“….which shall be made in Pursuance thereof….”

Federal laws are always supreme when made in “pursuance.” of the constitution….the powers delegated to the federal government by we the people.

All other laws – not in pursuance of the constitution – the states “or the people” are supreme.

For example – if the federal government passed a law that required everyone to participate in some kind of religious worship, then for some reason the supreme court found a way to argue that this was actually allowed – in direct contravention to the restrictions on such power in the 1st amendment – but a state passed a law to nullify those federal acts…..the state would be in the right and the feds would be in the wrong.

And we would hope that all would agree.

Or, for example – a number of states have passed laws that allow sick people to use a plant – cannabis – to medicate their disease based on physician’s approval.

Well, the Congress says that they alone have the power to determine if people can grow or consume a plant. And the supreme court in 2005 ruled that all state marijuana laws were illegal. At the time that ruling came down, there were 10 states that had such laws. How many were repealed? Zero. And since then, 4 more have added on – effectively nulllifying to some extent a federal law and federal court decision that says people who consume this plant should be thrown in jail.

Under the general misunderstanding of federal supremacy that you’ve alluded to (that ALL federal law is supreme, and not just that done in pursuance of the constitution), those tens of thousands of people being prescribed marijuana for cancer or glaucoma, or other diseases, should be arrested post haste – because federal law is “always supreme.” Is that what you’re advocating?

Hopefully not – because already 200,000 + people are arrested each year due to the unconstitutional exercise of federal power that rightfully belongs in the states – and we don’t believe that this number should be increased one bit.

And more importantly – just because the supreme court says something – doesn’t mean it’s right. In the mid-1800’s they ruled that black people were less than human, and today they rule that people who consume a plant should be locked in cages. Both immoral, disgusting, and unconstitutional rulings….that should be resisted and nullified for humanity’s sake.

Sometimes the supremes are wrong – a lot of times, actually – and it’s your duty to resist those errors on a state level. Well, that’s how the system was set up, and how we believe it should function, that is.

Hopefully that clarifies our view. The real debate is about what IS a constitutional power – it should never be that people should have to obey unconstitutional exercises of power.